Articles Posted in Immigration Law

The Supreme Court held that the county court erred when it declined to make special factual findings for Juvenile to apply for special immigrant juvenile (SIJ) status under 8 U.S.C. 1101(a)(27)(J) on the grounds that it was not a “juvenile court” for purposes of the statute.
Juvenile’s grandfather (Grandfather) sought to be appointed as Juvenile’s guardian and requested that the county court make special findings of fact contemplated in section 1101(a)(27)(J) to potentially become eligible for SIJ status. The county court appointed Grandfather as Juvenile’s legal guardian but declined to make the requested special findings of fact that Juvenile could use in his immigration petition based on its conclusion that it did not constitute a “juvenile court” for SIJ findings purposes. The Supreme Court reversed, holding (1) a county court with a jurisdictional basis under Neb. Rev. Stat. 43-1238(a) and which has made a child custody determination, such as appointing a guardian, has authority to make factual findings consistent with 8 U.S.C. 1101(a)(27)(J)(i) and (ii); and (2) the county court erred when it made a custody determination under section 43-1238(a) but then refused to make special findings under 8 U.S.C. 1101(a)(27)(J)(i). View "In re Guardianship of Luis J." on Justia Law

The Supreme Court held that the county court erred when it concluded that the appointed guardian (Guardian) of her juvenile nephew (Juvenile) had not satisfied 8 U.S.C. 1101(a)(27)(J) and therefore denied Guardian’s motion to make special factual findings that are necessary to apply for SIJ status under the statute.
In denying Guardian’s request to make special findings to be used in immigration proceedings, the county court stated that Juvenile was “not dependent on this court” and that Guardian had not satisfied the dependency or custody component of section 1101(a)(27)(J). During the pendency of this appeal, the Nebraska Legislature amended Neb. Rev. Stat. 43-1238(b) to clarify that courts with jurisdiction over initial child custody determinations under section 43-1238(a) also have jurisdiction and authority to make special findings of fact similar to the findings of fact contemplated by section 1101(a)(27)(J). The Supreme Court reversed and remanded the case, holding that because the county court made a custody determination under section 43-1238(a), it erred when it concluded that it had not made a custody determination for purposes of section 1101(a)(27)(J)(i). View "In re Guardianship of Carlos D." on Justia Law

Defendant moved to vacate his conviction for one count of assault in the first degree and withdraw his plea of no contest to the charge, arguing that the district court erred by failing to properly advise him of the immigration consequences of conviction before accepting his plea. The district court overruled Defendant’s motion to withdraw his plea of no contest, concluding that that Defendant was advised of an immigration consequence of his plea during the plea colloquy. The Supreme Court affirmed, holding (1) under State v. Yos-Chiguil, 772 N.W.2d 574 (Neb. 2009), Defendant proved that instead of reciting the advisement set out in Neb. Rev. Stat. 29-1819.02(1), the district court improvised an advisement, and therefore, Defendant established the first Yos-Chiguil factor; but (2) Defendant failed to establish the second Yos-Chiguil factor entitling him to relief, that he was facing an immigration consequence that was not included in the advisement actually given. Therefore, the district court did not abuse its discretion in overruling Defendant’s motion to withdraw his plea. View "State v. Gach" on Justia Law

In 2006, Appellant pled guilty to attempted possession of a controlled substance. In 2012, Appellant filed a motion seeking to withdraw his 2006 plea, alleging that neither his counsel nor the court had advised him of the immigration consequences of his plea prior to entry of the plea. The district court dismissed Appellant’s motion for lack of jurisdiction, concluding (1) the decision in Padilla v. Kentucky did not apply retroactively to Appellant’s 2006 plea and conviction; and (2) the court did not have jurisdiction because Appellant had completed his sentence and was no longer in the State’s custody. The Supreme Court affirmed in part and reversed in part, holding (1) the district court correctly concluded that Padilla v. Kentucky did not apply retroactively to Appellant’s 2006 plea-based conviction; but (2) the district court had jurisdiction to consider Appellant’s motion to withdraw his plea under the remedy provided in Neb. Rev. Stat. 29-1819.02(2) without regard to whether Appellant had completed his sentence. View "State v. Chojolan" on Justia Law

Defendant, who was born in Zaire and immigrated to the United States after being granted asylum, pled no contest to two misdemeanors in 2010. Because of credit for time served, Defendant was released from custody on the same day he was sentenced. Defendant subsequently moved to withdraw his guilty pleas, claiming his defense counsel provided ineffective assistance because he did not properly advise Defendant of the immigration consequences of conviction at the time he entered the pleas. The district court denied Defendant's motion, concluding that it lacked jurisdiction because Defendant had completed his sentences and had been released from custody. The Supreme Court reversed, holding that the district court had jurisdiction to decide Defendant's common-law motion to withdraw his pleas because (1) the statutory remedy under Neb. Rev. Stat. 29-1819.02 did not apply and the motion asserted a constitutional issue which was not addressed under the Nebraska Postconviction Act; and (2) the fact that Defendant served his sentences was not relevant to the jurisdictional analysis. Remanded. View "State v. Yuma" on Justia Law

Erick M., a juvenile, requested that the juvenile court enter an order finding that under 8 U.S.C. 1101(a)(27)(J), he was eligible for "special immigrant juvenile" (SIJ) status. SIJ status allows a juvenile immigrant to remain in the United States and seek lawful permanent resident status if federal authorities conclude that the statutory conditions are met. The conditions include a court order determining that the juvenile's reunification with "1 or both" parents is not feasible because of abuse, neglect, or abandonment. The juvenile court found Erick did not satisfy that requirement. At issue on appeal was the meaning of the phrase "1 or both" parents. Erick lived only with his mother when the juvenile court adjudicated him as a dependent. The Supreme Court affirmed, holding (1) when ruling on a petitioner's motion for an eligibility order under section 1101(a)(27)(J), a court should generally consider whether reunification with either parent is feasible; and (2) therefore, the juvenile court did no err in finding that because reunification with Erick's mother was feasible, he was not eligible for SIJ status. View "In re Interest of Erick H." on Justia Law

Servio Diaz, a Honduran disaster refugee with authorization to reside in the U.S., pled guilty pursuant to a plea agreement to misdemeanor charges of attempted possession of a controlled substance, cocaine, and driving while intoxicated. Diaz subsequently filed a motion for a writ of error coram nobis, seeking relief on the basis that his counsel was ineffective when counsel failed to advise Diaz of potential deportation consequences he would face when he entered his guilty plea. The district court determined that Diaz had not established entitlement to relief and denied the motion. The Supreme Court affirmed but on different grounds, concluding that the error asserted by Diaz was not an appropriate basis for relief by a writ of error coram nobis. View "State v. Diaz" on Justia Law

Alma Gonzalez was convicted of fraudulently obtaining public assistance benefits based upon a no contest plea that she entered pursuant to a plea agreement. Over two years after her sentencing, Gonzalez filed a motion to withdraw her plea, alleging that she had received ineffective assistance of counsel because her attorney had not explained that her plea would result in automatic deportation. The district court overruled the motion. The Supreme Court affirmed, holding (1) procedurally, Gonzalez was permitted to move for withdrawal of her plea; but (2) Gonzalez failed to prove by clear and convincing evidence that withdrawal of her plea was necessary to prevent a manifest injustice. View "State v. Gonzalez" on Justia Law